IN THE SUPREME COURT OF NIGERIA
On Friday, the 21st day of July, 1978
Before Their Lordships
DARNLEY A.R. ALEXANDER….. Justice, Supreme Court
GEORGE SODEINDE SOWEMIMO….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
ANTHONY NNAEMEZIE ANIAGOLU….. Justice, Supreme Court
CHIEF ODUM & ANOR
(For themselves and as representing the Odum’s family of Orogbum Diobu.)
CHIEF P.B.O. CHINWO & ORS
(For themselves and as representing the Ogbunabali people of Ogbunabali Village, Diobu.)
The appeal is therefore dismissed with costs assessed at N335 to be paid by the plaintiffs/appellants to the defendants/respondents.
LAND LAW – Identity of land in dispute – Duty of the party claiming to prove – Failure to prove – Effect of
Per SOWEMIMO, J.S.C. at P. 12, Para. A.
The plaintiffs in this case claim for themselves and for the representatives of the Odum Family of Orogbum Diobu, whilst the defendants were sued for themselves and as representing the Ogbunabali people of Ogbunabali village, Diobu. The institution of proceedings by the plaintiffs was caused by the defendants challenging the right of the plaintiffs to lease land to a private company for development purposes. The defendants contended that the whole area of Ogbunabali is communal land to which both parties have the right of use and occupation as in the case of each portion occupied by each of the 24 families. If at any time any family intends to part with any portion of its holding, the consent of the whole family must be obtained. It was the refusal of the plaintiffs to obtain the consent of the other members of their family that gave rise to this case.
The plaintiffs claim declaration of title to the whole area of land occupied by their family (Odum family), averring that the land was granted to them by Chukuoka, who was a descendant of the common ancestor of both parties. The defendants, on the other hand, said that there was no such right and that the area of land in dispute, being part of the area of Ogbunabali communal land, was never granted out and out to the plaintiffs’ family. The contest in the lower court, therefore, devolved on whether there was an out and out grant made to the plaintiffs’ family, or, on the other hand, the land was part of the communal land of the whole Ogbunabali Village, Diobu. It is not in dispute, as revealed in evidence, which we shall refer to later, that the defendants’ family comprises twenty-four sub-families of which the plaintiffs’ family is one. No evidence was led, except the ipse dixit of the first plaintiff himself, of a purported grant. There was no evidence led as to how the grant was made and as to the area allocated.
The case which the plaintiffs set out to make in their Statement of Claim was not established in their evidence. The first plaintiff claimed to be the head of Odum’s family of Orogbum Diobu, but he had to admit that up till 1972, someone else was the head chief and still held the staff of office. He also admitted that he had not been installed as a chief of the family and, therefore, could not validly say that he is the present head of the family. The relevant paragraphs of the Statement of Claim averred:-
“4. The people of Ogbunabali are the offsprings of the same ancestor, that is Rebisi, who is the father of Abali and Ogbum by the same woman. There are twenty-four sub-families; Ogbunabali and the plaintiffs are one of such sub-families.
5. The name Ogbunabali is derived from Abali and Ogbum Village which together is called Ogbunabali. Abali has his own lands distinct from that of Ogbum’s lands.
6. Village is made up of 2 main families that is Chukuoka and Sele. Chukuoka and Sele have also separate lands of their own as well as Abali. No one interferes with each other.
7. The Chukuoka family has 5 sub-families each of these sub-families has portions of land granted and allocated to them by their ancestor Chukuoka. The portion of land allocated to Odum’s family which is one of the sub-families of the Chukuoka family, has been in their peaceful possession and ownership from time immemorial without any interference from any other sub-families of the Chukuoka family, the Sele family or the Abali family.
8. Successive generations from late Chief Odum Maruzor, late Ogbonna, late Wolu, late Kocha, late Ihinda, late Nene and Ojukwu Odum who died on the 2nd of January, 1940, have been farming on the land and so have the present generation been farming on the said land and doing all manner of work without let or hindrance from any one.
9. The land the subject matter of this suit hereinafter referred to as the “land in dispute” is situate along Ogbunabali Street, Orogbum Diobu, Port Harcourt, and is otherwise known and called “Ekwu Gbogbo” containing an area of approximately 11.55 acres and shown on Plan No. SL 7/72 and registered as No. 29 at page 29 in Volume 3 of the Lands Registry in the office at Port Harcourt and to be produced at the trial has been in the peaceful possession enjoyment and undisturbed ownership of the said Odum family of Orogbum, Diobu. The……of the said land will be founded upon at the trial.
10. Around 1958, the people of Ogbunabali decided to develop Ogbunabali for good reasons.
(a) To stop the current wave then of selling individual or family holdings Ibos/Strangers by irresponsible sons of Ogbunabali;
(b) indirectly to stop the then Eastern Nigeria Government from acquiring Ogbunabali East since the Government then had acquired Ogbunabali West Layout, Trans-Amadi Industrial Layout and the Diobu Government Residential Area Layout.
11. To this end “The Ogbunabali Village Community Development Union” was inaugurated with a Draft Constitution. Among other major laudable objectives of the Union was “to develop Ogbunabali Village as a modern Town befitting it as the home of the indigenous owners on which Port Harcourt Town was founded”. The operative date of the Constitution is not known nor can it be said that it was assented to by the Ogbunabali Community.
Furthermore, no meetings of the said Ogbunabali Community Development Union were ever held or any officer appointed nor was any of the provisions of the Articles of the Constitution of the Ogbunabali Village Community Development Union such as subscriptions and levies, legal aid ever observed or Executive Committee or Trustees of the Union ever appointed.”The defendants in their amended Statement of Defence averred as follows:-
“2. Save as admitting that the plaintiffs reside at Orogbum Village, Diobu, Port Harcourt, the defendants and each of them deny paragraph 1 of the Statement of Claim.
3. In further answer to paragraph 1 of the Statement of Claim, each and every one of the defendants avers that there is no Odum family in Orogbum, Diobu. There is however a sub-family called Odum Maruzo which with Ogoloma-Maruzo sub-family together make up the Maruzo family.
The two plaintiffs belong to the said Odum-Maruzo sub-family which is headed by Chief Gabriel Odum, who is not a party to this action.
4. The defendants deny paragraph 2 of the Statement of Claim and will contend at the trial that in law, the plaintiffs cannot bring this action as they did not obtain the consent of all the principal members of the said Odum-Maruzo sub-family including Chief Gabriel Odum who is the Head of both the plaintiffs’ Odum-Maruzo sub-family and that of the main Maruzo family.
5. In answer to paragraph 3 of the Statement of Claim, the defendants and each of them aver that there are 24 and not 23 families in Ogbunabali Village. Furthermore, the defendants say that some of the said 24 families are not made parties to this suit.
6. With reference to paragraph 4 of the Statement of Claim, the defendants admit that the people of Ogbunabali are the offsprings of the same ancestor, that is Rebisi, who is the father of Abali and Ogbum by the same woman but the defendants deny the allegation that the plaintiffs are one of the 24 families that make up Ogbunabali Village.
7. Save as admitting that the name Ogbunabali is derived from Abali and Ogbum and that the town or village constituted by their offsprings to date is known as Ogbunabali the defendants and each of them categoricially deny each and every material allegation of fact contained in paragraph 5 of the plaintiffs’ Statement of Claim.
8. In further answer to the said paragraph 5, the defendants aver that all Ogbunabali lands – that is to say all lands handed down to Ogbum and Abali by Rebisi, their common ancestor – have according to their custom and from time immemorial been regarded and treated as communal land and the joint property of all the descendants of Abali and Ogbum.
9. Furthermore, the said Ogbunabali lands include the lands acquired by the Government of Nigeria in 1913 for the establishment of Port Harcourt, the lands comprised in the area now known as Ogbunabali West Layout and the lands comprised in the survey Plan No. ESP/313 referred to in paragraphs 12 and 15 of the plaintiffs’ Statement of Claim. The land claimed by the plaintiffs herein lies wholly within the area shown in the aforesaid Plan No. ESP/313.
12. The defendants deny all the material allegation of facts contained in paragraph 7 of the Statement of Claim.
13. In further answer to paragraph 7, the defendants aver that Chukuoka family is made up of six (6) rather than five (5) families as alleged by the plaintiffs. One of such families is the Maruzo family comprising the Odum-Maruzo sub-family. The land in dispute was and is still held in trust by the Maruzo main family for the use of members of Maruzo family in particular and that of the Ogbunabali community in general.
14. Furthermore, the defendants deny the plaintiffs’ averment that the Chukuoka family allocated any land to “Odum family” either as alleged or at all. In addition, the defendants and each of them say that the land in dispute has never been in peaceful possession of “Odum family” but that whatever acts were or are being done on the said land were or are done by members of the Maruzo family (to which the plaintiffs belong) not in their right as absolute or unencumbered owners of the land but always subject to the leave and licence of Ogbunabali people in whom the title to the said land have always resided and still reside.
15. In answer to paragraph 8 of the Statement of Claim, the defendants admit that many of the persons named in that paragraph who are members of Odum-Maruzo sub-family have farmed the land in dispute but the defendants further added that several other persons who belong to the Odum-Maruzo and Ogoloma-Maruzo sub-families have also farmed and are still farming on the said land in dispute.”
The learned counsel for the plaintiffs in his opening address stated inter alia as follows:-
“Plaintiffs seek title to a piece of land at Ogbunabali. Plaintiffs surveyed this land and had it registered at the land registry, Port Harcourt, Plan No. SL/72 registered as No. 29 Page 29 Volume 3 Land Register. There is no real dispute as to ownership but this land which plaintiffs claim as their exclusive property is said by defendants to be a communal property of all Ogbunabali people of which both plaintiffs and defendants are members. Ogbunabali comprises 24 families – plaintiffs make one of those families and defendants belong to the remaining 23 families.
Ogbunabali is made up of two groups – Ogbum group and Abali group each having its own separate land. Plaintiffs are of the Ogbum group. In 1958 both groups merged and decided to hold their landed property in common. They also made one survey plan of the whole Ogbunabali area on the lines of their community of property. This was for development purposes. Each one to deal with land must obtain possession from the community. This arrangement fell through and each began to develop its own area. Then a firm by name Nixon, Burrows and Partners came to agreement with plaintiffs to develop the plaintiffs’ land by establishing a housing estate. Defendants said we should not do that and that the whole area was communal land. This is the cause of action. Plaintiffs will call evidence to show that the land belongs to them.”
In view of the importance of this case, and the arguments canvassed before us against the findings of the learned trial Judge, we wish to set out in full relevant portions of the evidence in the case.
The plaintiff in his evidence inter alia stated as follows:-
“My name is Godwin Emenike Odum (m) live at Orogbum Diobu Village, Port Harcourt. Civil servant. I am of Ogbum family and also the head. We bring this action for ourselves and as representing Ogbum family and with leave of court.
I know defendants; they belong to various families in both Ogbum and Abali groups. The village of Ogbum and that of Abali together comprise Ogbunabali. Ogbum and Abali were of one father by name Rebisi. Ogbunabali comprises twenty-four sub-families; Odum is one of such families and it is the plaintiffs’ family. Ogbun and Abali have separate lands each controlling their own; Ogbum has two main families – Chukuoka and Sele. These two families have by themselves separate lands each controlling its own area of land. The Odum family to which I belong sprang from Chukuoka family. Each of these five families of Chukuoka has its own separate land allocated to it by Chukuoka. This Odum family has its own land controlled by it without interference by any of the other families. Our ancestors have been farming on this land from Chief Odum Maruzor to Chief Ojukwu Odum who died in 1940 – January. This land in dispute is situate along Ogbunabali Street, Orogun Diobu, Port Harcourt and it is known and called “Ekwu Agbagbo” and covers approximately 11.55 acres. It is shown on plan No. SL7/72 and registered as No.29 at P. 29 in Volume 3 of the Land Register in the Lands Registry, Port Harcourt. The senior members of Ogbunabali constituted themselves into a Union with a constitution to control any dealing with lands.The constitution was not signed by any one. Tendered, no objection, admitted and marked Exhibit B.
In 1959 the Ogbunabali hired the services of a surveyor Mr. E.S. Eyo who surveyed the whole Ogbunabali land and produced a survey plan No. ESP 313 covering 340.5 acres. Plan tendered, no objection, admitted and marked Exhibit C shows 62 permanent houses on the land – the only permanent houses then. These permanent houses belonged to the Ogbunabali people. After the survey, the plan went to Surveyor-General, Enugu for counter-signature.
I do not know of any head that had been destooled. I deny that I am leading a faction of Odum family against Gabriel. Maruzor family knows of Gabriel’s destoolment. Before trouble started Gabriel was head not only of Odum’s family but also of Maruzo main family. Since Gabriel had been removed I am now head of Odum Odu and Ogoloma families. Amos is head of Ogoloma – Moses is head of Odu family. I am head of Odum family and the overlord of the whole Maruzo family. Amos and Moses are my paternal uncles. My father was older than they and so was head of the family. The head of Maruzo family must come from Odum. The heads of Odu and Ogoloma families have not accepted me as the head of Maruzo family. I have not been installed a chief yet. Defendants came from Ohia, Chinwa, Maruzo Seleede, Iro Oriaku Npotoma, Selema, Opori, Oke Akukwo, Yes, eleven families have been left out of this action. Exhibit C contains the land in dispute shown as land of Ogbunabali people. I was the chairman of the Ogbunabali development scheme.
The 16th defendant is the paramount chief of Orogbum village. He was elected by the people and I was put up by my family. This made the people and my family to pull apart – we became separated and since then my family has been carrying on its affairs separately from the rest of the Ogbunabali people. Chief Gabriel Odum is not on my side and we of the family ceased to recognise him as head of Odum family.
Under cross-examination, the plaintiff stated inter alia as follows:-
“Yes, Gabriel had the staff of office and other things as head of Odum Maruzor family. Yes, he still holds the staff of office. I have another paternal uncle Benson Odum alive and older than I am. If anything happens to Gabriel the successor should be Benson. Yes, Gabriel is the head of the family and Benson is the next to him. I now say Gabriel agreed that I should be the head of family over him; this was in 1969. I have been head since then. Yes, I told the court that Gabriel was head up to 1972 when this case started.
The meeting I attended in 1972 and 73 were for arbitration over this action I instituted and not a Union meeting. Each family has a compound in the village. Wokekoro family is nearer to the land in dispute than Odum family. Ogoloma family too is nearer to the land than Odum family. Each family has open space in its compound without molestation, and so have other families. I deny that they are these buildings that I call estates.
Yes there were several other huts and mud buildings not shown on Exhibit C at the time Exhibit C was made. Those shown are permanent houses. There are one thousand four hundred and eleven houses all types in the whole Ogbunabali village. Yes a large portion of Exhibit C is still farm land. The purpose of Exhibit D is to ensure the development of the farm land area in Exhibit C.
Nickson, Burrows & Partners were to finance the development project. Yes, the land had to be mortgaged to them for the money they would invest in the project. They are a foreign company. Other families developed their own without question by the Ogbunabali people as they did in mine. I made the publication in the Nigeria Star to clear any doubt about ownership of the land. Abali family said they did not know of the refutal but I included them in this action for the name Ogbunabali in the release. Ogbum village knew of the plan I made with Nickson & Co. but they were not happy about it as I knew their feelings to be.
The whole Ogbunabali paid for the expenses of making Exhibits C and D. I was not deceiving anybody when I called the land on Exhibits C & D “Ogbunabali Village Land.”
Under cross-examination, the 2nd P.W. stated as follows:-
“I was of Ogbunabali village prior to my marriage. I did not know the conditions under which my late husband got the land to farm. All I knew was that my late husband’s father farmed there. My husband was Ikeguru Nwukau of Rumuje Nwakpo; that is Abali section. People farm on various lands allocated to them. Thompson Ikeguru is the only surviving son of my late husband; he is an adult and member of Ogbunnabali Development Union. He was small when I was farming the land; he is now an adult.”
The 3rd P.W. in his evidence said:-
I know 2nd P.W. of Abali section. Plaintiffs are of Ogbum section. The name of the land in dispute is “Gbogbo” and the whole land in Ogbunabali is called “Gbogbo”.
Under cross examination the 3rd Prosecution Witness stated inter alia as follows:-
“People of Ogbum and Abali sections are one and the same people and own the Ogbunabali land in common. 1st plaintiff is of Maruzor main family.
Ogoloma too is a branch of Maruzor family. People from these families are entitled to use land belonging to Maruzo family but each farmer had his own section to farm on. The whole Ogbunabali East land is called “Gbogbo” land.
I was born 1910. I inherited my land from my father. I have an elder brother Wilson Amaran; He is entitled to farm on this my land and so do my other brothers. We can sell the land if we all agree to do so. Land cannot be sold to strangers without consent from the elders.
Each family has its own compound where they build without interference. The Union did not prevent people from building in their own compound. One can also build at any place where his family has land. Ogbum has land in Abali and Abali has land in Ogbum. The Union does not exist now. I was a member of the Union at one time. I was a good member.”
The 4th Prosecution Witness under cross examination said inter alia:-
“We Ogbunabali people do not allow lands to be sold to strangers but the other Ogbunabali people.”
The 5th Prosecution Witness in his evidence said inter alia as follows:-
“I know plaintiffs and defendants all of Ogbunabali – and come from various families. The 1st and 2nd defendants have family lands as well as the other defendants. They have developed their lands. My family has its own land; I have built houses on it because it is my father’s land. I know the land in dispute at Ogbunabali estate.
In 1958 Ogbunabali people planned the whole Ogbunabali area to prevent indiscriminate selling of lands to non Ogbunabali people. When the Ibo strangers left there was no longer selling of lands and each began to develop his area. I do not know of any second plan made by Ogbunabali people. My father’s land that I use now does not belong to Ogbunabali people. There is no land communal to Ogbunabali people except the area we planned. When we made the plan we agreed that any one wishing to use land must obtain consent of the community, but when the Ibos left each worked on his land. Many did not agree to the planning scheme. We brought up this scheme to prevent Ibos from buying our lands.
I know the land in dispute – a farm land. Plantiffs farm on it. My farm is close to it and so I know the farms there; they also saw me farm on the land close to their own; I farmed there first for one year about 15 years ago. Some one gave me that land to farm on just for that one year. I know that plaintiffs still farm on their land; I pass that way often on stroll. We made the rule that lands should not be sold out the way the young men were doing. 1st plaintiff was shown to us to represent Odum family but there is Gabriel Odum who is older than 1st plaintiff. The head of Odum family is Gabriel Odum.”
The 6th Prosecution Witness in his evidence said as follows:-
“I know plaintiffs and defendants all of Ogbunabali. I know Ogbunabali East area. In 1959 we made a plan of the whole area. Prior to that plan there was the Ogbunabali Development Union now extinct. The main reason for making the plan was to stop people from selling lands to non natives. In 1959 the whole Ogbunabali area was in “shanties”
Under cross examination the 6th Prosecution Witness said:-
“I said Odum family farm on the land; yes, I may not know the conditions under which they farm on the land.”
The 1st Defence Witness in his evidence said as follows:-
” I know the Maruzor family in Ogbunabali. Two families make up the Maruzor family – Odum and Ogoloma. Odum is the plaintiffs’ family. My family Odu has no connection with Odum or Ogoloma (Maruzor). My family the Odu family has its own area of land; the Maruzor family (Odum and Ogoloma) has its own area of land. Maruzor land can be used by Odum family and Ogoloma family.
Each family has its own land and one family cannot interfere with the land of another family. A stranger, that is, a non native of Ogbunabali, cannot use my family land; it is for the use of my family as it is with other families. ‘I will not accept to give to a stranger any portion of my family land for his use’. There was a ruling or local injunction among Ogbunabali people against giving out any land to strangers. Even if the strangers were introduced by an Ogbunabali native the stranger will not be allowed to use any land.”
Under cross examination the 1st defence Witness said as follows:-
“The plaintiffs brought a company – strangers – to build on their land and hence Ogbunabali people raised objection to their building on the land. I was not at any meeting on 9/5/74. 5th and 10th defendants are building on their family land and none can interfere with their work; but plaintiffs brought strangers to build on their land and hence the objection.
The land at Gbogbo is the joint property of Odum and Ogoloma families and not only of Odum family.”
The 2nd Defence Witness in his evidence said as follows:-
“The system of land holding in Ogbunabali is that any member of a family wishing to build applies to the head of the family for land and is allocated land. The community exercises control of all farm lands to the effect that such lands cannot be given out to strangers. The Ogbunabali community owns all lands in Ogbunabali. The right of each family to these farm lands is that of farming on these farm lands, but each family builds on its own family land.
Even where an Ogbunabali person brings in stranger to build the community would not allow such stranger to build – on one occasion one Victor Achubule sold land to one Ohochuku a non native, to build but the community drove Ohochuku away. Port Harcourt was Ogbunabali property acquired by Government in 1913 and so was Ogbunabali West layout recently. The moneys for these acquisitions were paid to the Ogbunabali people. Not all twenty-four families had land in Ogbunabali West layout before acquisition but the compensation for the acquisition will be shared among all Ogbunabali families. This restriction on alienation of lands was made known to all at meetings and in the newspaper. It was a decision taken at Ogbunabali community meeting. These are the newspaper publications – Tendered, no objection, admitted and marked Exhibits N, O, & P. This is the plan referred to in the publications – Exhibit C identified.
The 1st plaintiff knew of all these publications for he was then the president of the Ogbunabali community. I know the land in dispute; it is in Exhibit C. The community knew about and approved the building of petrol filling station by 5th defendant. The land in dispute is about a pole from my house. The Maruzor family – Odum and Ogoloma – are entitled to use if for farming purposes only. Both sections of Maruzor farm on it. Odum family has no right to exclude Ogolomo family from the land.
The plaintiffs brought a Company – Nixon & Co. to build on the land. It was an expatriate company and the community stopped them from building. The plaintiffs made publications Exhibits J & K and defendants refuted by Exhibits L & N. I was made chief in 1972. 1st plaintiff contested the chieftaincy title against me and lost and since then he did not wish to do anything with the rest of the community. The community paid for the survey plan and the publications.”
Under cross examination the 2nd Defence Witness stated as follows:-
” The 5th defendant built in his father’s compound and so he was expected to tell the community. The 10th defendant built in Chinwo’s compound. If one is to build on farm land he must inform the community but not when he builds on family compound to live in. Yes, where 2nd defendant built was farm land because he is a native of the place. He built outside his family compound. If 2nd defendant invites strangers to build we will oppose it. Odum family has no land exclusive to it; it has land jointly with Ogoloma family. There is no dispute between these two families over their joint ownership of land . Every family in Ogbunabali has farm lands and building lands. One family can interfere with the use of another’s family land if it is to be given out to strangers. There was this restriction on land alienation before 1960.”
The learned trial Judge in his judgment made the following findings:-
“From the evidence I find that Ogbunabali comprises twenty-four families one of which is the Odum family of the plaintiffs over which Gabriel Odum the D.W.5 is the head. The 1st plaintiff, in the earlier part of his evidence, claimed to be the head of Odum family which in fact he is not even as he admitted later, thus confirming evidence by the defence that he is not. Exhibit A was a Power of Attorney authorising the 1st plaintiff and others to deal with plaintiffs’ family land including the bringing of this action.
I also find that there is no indication on the plan as to the location of the area in dispute, such area ought to have been indicated on the plan. Plaintiffs purported to have given boundary descriptions of it but these boundary descriptions are not shown on the plan. The plan Exhibit C covers an area of 340.5 acres; plaintiffs are claiming 11.55 acres of this. Plaintiffs ought to have shown at which part of Exhibit C they claim the 11.55 acres – and also showing the area dimensions of the portion they claim. For what it is now plaintiffs are just claiming 11.55 acres of land without stating where the land is. This court cannot make an order on an unidentified area of land. Where plaintiff claims land he must identify such land and must in showing such land in a plan, if he made a plan, relate it to some natural features or other known object so that the land could be easily identified for future reference and to avoid future litigations on the same land by other names. The declaration sought by plaintiffs cannot therefore be made.
It is also in evidence that the former Government paid compensation to Ogbunabali people in respect of lands at Ogbunabali West acquired by the Government. It is also in the evidence of 1st plaintiff that Ogbunabali East and West were one vast area of land prior to the construction of the road now known as Yakubu Gowon Drive which now divides it into East and West. If therefore compensation paid in respect of Ogbunabali West went to the Ogbunabali people, that is the Ogbunabali community then it follows that all lands in Ogbunabali East not the subject of private family ownership, belongs to the Ogbunabali community; so that all lands not indicated on Exhibit C to be privately owned belongs to the Ogbunabali community.
I also refer to the evidence of plaintiffs’ 5th witness in examination in chief when he said “There is no land communal to Ogbunabali people except the area we planned”. The area planned is that shown in Exhibits C & D. So the area in Exhibits C & D not indicated as the property of private ownership belongs to the community.
On the fact of all these I do not find anything in support of plaintiffs’ case to warrant a finding in their favour. The plaintiffs cannot succeed and I hereby hold that their case has failed and I accordingly dismiss it.”
On appeal before us, counsel asked that the relief sought be amended to include, as an alternative relief, one of non-suit of the plaintiffs’ claim. Learned counsel for the plaintiffs also argued at first that the judgment was not supported by the weight of evidence but in the end he had to concede that the land is communal land of the Ogbunabali people.
We have carefully considered the arguments and replies of both counsel on the issue of non-suit and have come to the conclusion that in view of the findings of fact by the learned trial Judge, which are amply supported by the oral and documentary evidence in the case, that this is a case in which the order made by the learned trial Judge, that is, one of dismissal of plaintiffs’ claim, is the correct order. We have considered the following cases:-
Titus Sogunle and Ors. v. Amusa Akerele and Ors. (1967) NMLR Page 58;
Ajibade Garuba v. Abu Akacha (1966) NMLR Page 62;
Yesufu Dele and Family v. Adelabu and Family (1966) NMLR Page 105;
Okwo Ejiofor v. Eze Onyekwe and Ors.(1972) 1 ANLR Page 527;
Idundun and Ors. v. Daniel Okumagba (1976) 9-10 S.C. page 227; and
Sir Adesoji Aderemi v. Joshua Adedire (1966) NMLR page 398.
We would like to adopt the reasoning in the last case cited, the facts of which are similar to this one, and emphasise that although the claim is being dismissed, both parties are agreed that the plaintiffs’ family have a right to the use and occupation of the land occupied by them at present on which they have built houses and cultivated farms.
The appeal is therefore dismissed with costs assessed at N335 to be paid by the plaintiffs/appellants to the defendants/respondents.
Mr. R. A. B. Abasi…..For Appellant
Mr. O. Oyebolu…..For Respondent